Matter of Ackert, 30 Ed Dept. Rep 31
The Ackert case, decided by the Commissioner on August 6, 1990: This case is significant because it overturns a prior line of Commissioner’s decisions that permitted suspension of children on the grounds of truancy.
The case also holds that a student under the compulsory school age may not be marked absent when suspended from school because the district is obligated to provide alternative instruction. The decision clarifies that alternative instruction must be "equivalent" instruction and may not consist of study halls. Therefore, the Commissioner ruled that for students under the compulsory school age suspended from school, only where the district provides equivalent alternative instruction and the student fails to attend, may a student be marked absent.
In addition, the case is significant because it addresses the procedures to be followed in the discipline of children referred to the CSE. In cases where the CSE fails to evaluate a pupil in a timely manner, a school administrator is precluded from imposing successive short term suspensions or referring the child to the superintendent for a hearing under §3214 of the Education Law, until a determination has been made by the CSE whether the child is handicapped and, therefore, entitled to the procedural safeguards under the EHA.